The Indus Waters Treaty: adapt or perish

In August, India issued its fourth notification to Pakistan under Article XII(3), seeking government-to-government discussions. These notifications appear to have been triggered by the World Bank’s dubious decision in October 2022 to authorize parallel proceedings before the neutral expert and the Court of Arbitration; The impact of the climate crisis on the Indus Basin also has a role to play.

India’s views came after years of frustration over Pakistan’s refusal to engage constructively with the implementation of the IWT. Pakistan, of course, has repeatedly chosen to ignore government-to-government negotiations. Its government and experts seem to believe that Pakistan should not engage in these discussions with India because India cannot unilaterally end the IWT. This perception may be unfounded, as India would be entitled to do so given Pakistan’s disregard for its treaty obligations under Article XII and continued abuse of the dispute resolution mechanism under the IWT to block crucial hydropower projects in J&K, which amounts to bad faith conduct under international law.

The principle of pacta sunt servanda (agreements must be respected) is at the heart of international law, requiring that treaties must be honored. However, this principle also requires that States act in good faith. Pakistan’s dishonest refusal to engage in discussions for amendment of the IWT or to adhere to its established dispute resolution process constitutes a material breach and violation of pacta sunt servanda. India could not have foreseen, at the time of joining the IWT, without a termination clause, that Pakistan would deliberately and systematically act to derail the agreement. reason for being of Article XII (3).

States have the right to terminate a treaty even if it does not contain a cessation clause under international law in certain circumstances. Pakistan’s repeated refusal to engage with India on water sharing issues, despite the IWT framework, is not only an inconvenience but a violation of Article XII (3) and the right international. Under these circumstances, India has a legitimate case to pursue the removal of the IWT, as its modification has been made impossible due to Pakistan’s antics.

India has consistently cited significant demographic change and the climate crisis since the signing of the IWT in 1960 as reasons for seeking a change in the treaty. These fundamental changes in circumstances also constitute legitimate grounds for termination of the IWT due to the principle of rebus sic stantibus (things as they are) which recognizes that a fundamental change in circumstances releases part of its conventional commitments.

The Indus river system is a lifeline for both countries, especially Pakistan, where agriculture largely depends on the waters of the Indus, Jhelum and Chenab. Any disruption to domestic shipping would have devastating consequences, particularly on Pakistan’s water security and agricultural production. But India also risks suffering from continued hostilities over water consumption.

India has honored its commitments under the IWT, even in times of war. However, in the face of Pakistan’s bad faith, India may now feel justified in reconsidering the viability of the treaty, as its frustrations are not simply limited to procedural disagreements; indeed, the Kishanganga and Ratle hydropower projects are crucial projects for J&K.

Although the legal justifications for India’s position are strong, the geopolitical consequences of denouncing the treaty are complex. Both countries must recognize the importance of water security in a region already grappling with the climate crisis, population growth and resource scarcity. The best outcome would be for Pakistan to return to the negotiating table and for both countries to update the treaty to reflect modern challenges that have arisen due to the fundamental changes occurring in the Indus Basin.

At the same time, India’s notifications underscore a crucial reality: treaties are built on mutual trust and cooperation. Without these elements, no legal document, no matter how strong, can stand the test of time. It remains to be seen whether Pakistan will take this opportunity to sit at the negotiating table or whether it will continue on a path that could lead to the end of one of the world’s most successful water-sharing treaties.

Shravan Yammanur is an advocate of the Supreme Court. The opinions expressed are personal